Nisbet v. Lawson

• Citation: 1 Ga. 275
• Decision Date: 31 March 1846
• Docket Number: No. 44.,44.
• Parties: Franklin A. Nisbet, plaintiff in error. vs. James Lawson, defendant in error.
• Court: Supreme Court of Georgia

1 Ga. 275

Franklin A. Nisbet, plaintiff in error. vs. James Lawson, defendant in error.

No. 44.

Supreme Court of the State of Georgia

MARCH TERM, 1846.

For the facts and ground of error taken in this case, see the opinion of the Supreme Court.

His Honor Judge Nisbet gave no opinion in this case, the plaintiff in error being a relative.

James Jonnson, for the plaintiff in error.

The appeal should have been dismissed.— Hoichhiss, 600; rule of court, 6 Johnson Rep. 296; 1 Chitty's Ft. 523; Tidd's Prac. 626; Ala. 98, and 395; 1 Strange, 492.

The court erred in ruling Grimes competent.—1 Campbell, 251; 10 Pickering, 137 The court erred in charging that an agent might sue in his own name.— Ckitty, Pl. 2; 2 Stewart and Porter 134; 12 Johnson Hep. 1; 1 Peter\'s Pep. 46.

The count erred in charging the jury in reference to the powers of a general agent.—2 Kent, 613; 3 Term. 757; 5 Peters, 292.

The court erred as to the allowance of interest, and the form of the verdict —Hotchkiss, 395; ib. 598.

A. H. Cooper, for the defendant in error.

1st. The court below committed no error in overruling the motion to dismiss the appeal.— Hotchkiss' Dig. 600. 682; Rules Superior Court, title Appeals; Best on Presumptions, 78. 79; 10 Johns. Rep. 220; 12 Ib. 310; 3 Stewart, 23; Com. Dig. Attorney B. 1, 20.

2d. The court committed no error in overruling the demurrer to the second count in the declaration.—2 Chit. Prac. 342, et seq.; Sounders on PI. and Ev. 130, 131.

3d. That the witness Grimes was competent, his interest, if any, being equally balanced.— Birt vs. Kershaw, 2 East, 456; Ilderton vs. Atkinson, 7 T. R. 476; Woodhull vs. Holmes, 10 Johns Rep. 231; Waters vs. Burnet, 14 Johns. R 362. See also, Fleming vs. Gilbert, 3 Johns. Rep. 528; Edmonson vs. Mac/tell, 2 Term. Rep. 4; Edwards vs. Evans, 3 East, R. 455.

4th. An agent lor hire or reward, may maintain an action in his own name, especially when the contract is made directly with him.— Chit, on Con. 230; Story on Agency, 393, 396 et ref.; Gardiner vs. Davis, 2 Carr. ami P. 49.

5th. That a general agent cannot direct the money of his principal, to his, the agent's, own debts.— Story on Agency, 127, 138; Kinne's Law Compendium, 1845, tit. Agmt; Maanss vs. Henderson, 1 East's, Term R. 335.

6th. The verdict of the jury in assumpsit, for money had and received, is for damages; and the measure of damages is the principal sum received, with interest thereon, from the time of the demand.— Prin. Dig. 427, 294; 6 Wheel. Com. Law, 215.

By the Court—Lumpkin, Judge.

This action was originally brought in the Inferior Court of Muscogee county, by James Lawson, against Franklin A. Nisbet, to recover an amount collected by him, as an attorney, on a note made by William B. Phillips, dated March 25, 1841, for one thousand dollars, payable sixty days after its date, to the order of William C. Gray, at the Chattahoochee Railroad and Banking Company of Georgia, with interest from date, endorsed by Gray, and also by Greenwood & Grimes.

The defendant pleaded non assumpsit, payment: and, further, that the money had not been demanded of him before suit brought.

The plaintiff confessed a judgment to the defendant, reserving the right of appeal; and thereupon did appeal to the Superior Court.

At May term, 1846, Judge Hill presiding, a verdict was rendered for the plaintiff.

At the trial of the cause, and before the same was submitted to the jury, the defendant moved to dismiss the appeal, on the following grounds, to-wit:

1st. That the appeal was not taken from the verdict of a jury, but from a confession of judgment, reserving the right of appeal.

2d. That the bond was not attested by the clerk, as required by the rules of court.

3d. That it did not appear affirmatively, that the appeal was taken within four days after the adjournment of the court below. 4th. That it appeared to the court, (which was admitted by the plaintiff,) that, for the last two terms of this court, no judicial action was had in the case, and that therefore the case was discontinued.

5th. That it did not appear by the certificate of the clerk, that the whole proceeding below was transmitted to this court—the clerk certifying the bond alone.

6th. That the appeal bond was void, because it had been executed by the attorney of record, and not by the party himself.

The court overruled the motion to dismiss the appeal, and thereupon the defendant excepted.

The defendant then demurred to the second count in the declaration, and the demurrer, having been heard, was overruled, and thereupon the defendant excepted.

The cause was then submitted to the jury, on the issues joined between the parties. The plaintiff offered, first, in evidence, a declaration filed in the Inferior Court of Muscogee county, by Nisbet, as attorney; in which said Lawson was plaintiff, and William C. Gray defendant. The writ set forth, as the foundation of the action, the same note for the collection of which the plaintiff sought to male the defendant chargeable; and averred, that it was endorsed by Gray to Greenwood & Grimes, and by them to Lawson. The declaration was signed by Nisbet, as attorney for Lawson, the present plaintiff, and the judgment was duly entered up in his favor. The original note, as described in the writ, was also given in evidence to the jury.

The plaintiff then introduced Grimes, one of the endorsers on the note, to prove the payment of the money due thereon to Nisbet.

The defendant moved the court to exclude his testimony from the jury, on the ground that he was incompetent, being interested in the event of the suit. But the court overruled the objection, and admitted the witness to testify, and thereupon defendant excepted. Grimes, being sworn, testified that he was one of the firm of Greenwood & Grimes, who endorsed the note, on which the money was alleged to have been collected. The original note being shown him, he further testified, that in 1842, he paid on the note eight hundred dollars to Nisbet, which amount he (Nisbet) admitted was the balance due on said note, after applying the proceeds collected by defendant, of notes placed in defendant's hands by witness, and including the eight hundred dollars, and the proceeds of the notes placed in defendant's hands by witness, he paid defendant about eleven hundred dollars. Witness stated that he had several conversations with defendant on the subject. Being cross-examined, he testified that defendant stated that he received the note, alleged to have been collected, of one Gambrill, and that he considered it Gambrill's note and property.

Plaintiff swore Phillips, the maker of the note. He testified that he was master of a boat, and had sold some goods, damaged on his boat; and that the note in question was given by him, and endorsed for, and on account of, the property so sold by him, for the benefit of the indemnities of the policy of insurance, covering the goods damaged. and was in discharge of his liability for the goods so sold. That the note was made for an insurance company in New York; that the plaintiff in this action was the secretary of said insurance company; that Gambrill wasthe cashier of the bank specified in the note, and that Lawson was not present when the note was given; and that Gambrill managed the whole matter in taking the note. The underwriters were not specified. The plaintiff introduced A. H. Cooper, who testified that he had acted as agent of plaintiff, demanded the money of defendant some six months before suit brought, that defendant refused to pay him the money, stating that it was a contest between him and one McCay, as to who should have the money. That he, the defendant, received the note of Gambrill, and had paid the proceeds thereof to Gambrill\'s creditors.

After the plaintiff rested his cause, and after argument had been had by the parties to the jury on the issues, the counsel for the defendant having insisted, in his argument, that no person but the individual in whom was the legal right to the money could maintain the action, the court charged the jury that such was the law; but that, if Lawson was the agent of the insurance company, for hire or reward, and though the money sued for might belong to the insurance company, yet he, Lawson, being an agent for hire or reward, might well maintain this action in his own name. To which charge, so given, defendant excepted. The defendant then requested the court to charge the jury, that if they should believe, from the testimony, that Gambrill was the general agent of the plaintiff, in reference to the note made by Phillips, and placed in defendant's hands, that the said Gambrill might well direct the application of the money collected thereon; and that if Nisbet paid the money collected thereon to any person under the order of Gambrill, that he, Nisbet, might well do so, and that it would be a good discharge. The court refused to give the charge as requested, but charged that Gambrill might have been the general agent of the plaintiff; yet, being his agent, he had no light or power to order the payment of the money collected to demands against him, Gambrill; and that if Nisbet paid the money under such directions from Gambrill, with the knowledge that Lawson was the owner of the note collected, he was not thereby discharged, but was still liable. To the refusal of the court to charge as requested, and to the charge as given, the defendant excepted. The court charged the jury, that if they should find for plaintiff, they should return a verdict for so much as damages, and that the measure of damages in the case was the amount of money collected by the defendant and interest thereon, from the time of the demand made on him for the money, and that the verdict should be for such entire sum, and not so much principal and so much interest. To which charge, so given, the defendant excepted.

The first ground of complaint is, that the court did not dismiss the appeal, because it was not taken from a verdict; the bond...